The court emphasized that in ex parte cases, the plaintiff must prove their claims, and the statutory presumption under the Benami Transactions Act favors the spouse unless rebutted.

ORDER :

K. Murali Shankar, J.

1. The Civil Revision Petition is directed against the order dated 28.11.2018 made in E.P. No.73 of 2014 in O.S. No.384 of 2010 on the file of the Subordinate Court, Kodaikanal.

2. The revision petitioner is the first defendant, the first respondent is the plaintiff and the respondents 2 to 5 are the defendants 2 to 5. For the sake of convenience and brevity, the parties herein will be referred to as per their status/ranking in the trial Court.

3. The plaintiff, by alleging that the first defendant was his legally wedded wife and that he purchased the suit property with his funds, but in the name of his wife-first defendant, has filed the suit in O.S. No.384 of 2010 against the first defendant and other defendants claiming declaration that the sale deed dated 01.02.1996 registered as Document No. 187/1996 on the file of the Sub Registrar Office (SRO), Kodaikanal, as null and void and for directing the defendants 3 to 5-Registration Department Officials to make necessary entries in their books stating that the sale deed dated 01.02.1996 is null and void and to cancel the same in consequence of the declaratory relief and for directing the second defendant to execute a fresh sale deed in favour of the plaintiff in respect of the suit property.

4. It is not in dispute that the suit property was originally owned by the second defendant and she sold the suit property in favour of the first defendant, vide sale deed dated 01.02.1996.

5. The case of the plaintiff projected by him till the filing of the present revision in brief as follows:-

(a) In the suit in O.S. No.384 of 2010, all the defendants had remained ex parte. The plaintiff has adduced evidence and the trial Court has passed an ex parte judgment and decree on 22.01.2014 as prayed for. The plaintiff as decree holder has then laid the execution petition in E.P. No.73 of 2014 for executing the decree for mandatory injunction directing the second defendant to execute a sale deed in favour of the plaintiff. The defendants had also remained ex parte in the execution proceedings.

(b) Thereafter, the first defendant through her power agent has filed an application under Order 3 Rule 1 C.P.C. in E.A. No.130 of 2016 to permit her to appear through her power of attorney and the same was dismissed for default. The first defendant's power agent has also filed an application under Section 5 of Limitation Act to condone the delay in filing the petition for setting aside the ex parte decree along with another application under Order 3 Rule 1 C.P.C. to permit the first defendant to appear through her power agent and the same were also dismissed for default.

(c) As per the direction of the Executing Court, the plaintiff has produced draft sale deed and the same was accepted and on that basis, fair sale deed was executed and the same got registered and consequently, the execution petition was ordered to be closed on 28.11.2018.

(d) The first defendant, without taking any steps to restore the applications, which were dismissed for default and after losing battle both in the original side as well as in the execution side, has approached this Court invoking revisional jurisdiction Court under Section 115 C.P.C., challenging the order passed by the Executing Court.

6. After considering the submissions made on either side and on perusing the entire records, it is very much clear that the first defendant has attacked the proceedings mainly on the following grounds:-

a) Summons in the original suit and notices in the execution petition were neither sent nor served on the first defendant.

b) The judgment of the trial Court is not in conformity with the provisions of Order 20 Rules 4 and 5 and the settled legal position.

c) The plaintiff has neither raised any pleadings nor adduced any evidence to rebut the statutory presumption under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 that the suit property had not been purchased for the benefit of the first defendant.

7.